Joao Salvador Jesus and Anr. Vs. Fatima Electra Jasmina D'Silva (22.04.2004 - BOMHC) - Court Judgment

Excerpt:
[a] civil procedure code, 1908 - order 41, rules 32, 33 - powers of appellate court - suit for recovery of consideration paid for the sale deed - case set out in the plaint - not a case of the plaintiff that alongwith the sale deed plaintiff had not received possession of the property - the case of the plaintiff in the plaint was that he was deprived of the possession by the obstructionists - the plaintiff should have taken action against the obstructionists - he could not have filed suit for recovery of consideration paid without seeking cancellation of the sale deed.;the sale deed gives a clear impression that by the execution of the sale deed the defendants conveyed possession of the said property to the plaintiff. that apart it was not a case of the plaintiff in the plaint that along with the sale deed the plaintiff had not received the possession of the property. if that was the case the plaintiffs remedy might have been to recover possession of the property. all that the plaintiff stated in the plaint was that the plaintiff was deprived possession of the property by the said martha and elvira. it follows that after the plaintiff got possession of the property through the said sale deed the plaintiff has been deprived of the said possession by the said martha and elvira and if that is so the plaintiff ought to have taken action according to law against the said martha and elvira.;the plaintiff is seeking to recover the consideration paid by her possibly because of the interference of the said martha and elvira in the enjoyment of the property purchased by the plaintiff. as the old adage goes, one cannot have the cake and eat it too. the plaintiff cannot have title to the property and at the same time recover the money paid by her as consideration for the said sale deed. the plaintiff could not have filed a suit for recovery of consideration paid without seeking cancellation of the sale deed.;[b] civil procedure code, 1908 - order 41, rule 33 - power of appellate court - grant of relief - granting relief not prayed for is one thing and moulding of relief is quite another - reliefs not sought cannot always be granted on the principle that reliefs can be moulded.;granting of reliefs not prayed for is one thing and moulding of reliefs is quite another. reliefs not sought cannot always be granted on the principle that reliefs can be moulded. - section 10: [swatanter kumar, c.j., a.p. deshpande & smt. nishita mhatre, jj] admission to professional colleges - technical courses - publication of brochure on basis of which candidates seek admission to various institution keeping in mind their merit and preference of colleges held, for ensuring adherence to proper appreciation of an academic course, it is essential that the method of admission is just, fair and transparent. the first step in this direction would be publication of a brochure on the basis of which the applicants are supposed to aspire for admission to various institution keeping in mind their merit and preference of college. brochure, firstly has to be in conformity with law and the statutory scheme notified by the competent authority. it is a complete and composite document as it deals with the scheme for conducting their entrance examinations, declaration of results, general instructions and method of admission, etc. this brochure is binding on the applicants as well as the authorities. this brochure or admission notification issued by the state or other competent authority cannot be altered at a subsequent stage particularly once the process of admission has begun. there is hardly any exception to this accepted rule of law. section 10: [swatanter kumar, c.j., a.p. deshpande & smt. nishita mhatre,jj] admission to professional colleges - technical courses - approval to additional seats or to start new course - cut off dates held, the settled principle of law is that merit of the applicant is the primary criteria which would determine his rank as well as the college where he would be entitled to admission. this rule should not be frustrated as it will tantamount to entirely upsetting the object of admissions based on merit oriented method and would cast cloud on the fairness and transparency of the method of admission. one of the ways in which merit can be defeated is allowing increase in the intake strength or commencement if new colleges beyond cut-off date and admissions beyond the last date specified in the notification/calendar issued by the concerned authorities. this can be illustrated by giving an example. college a which is running a professional course like engineering or mba etc. has an intake capacity of 60 seats which has duly been notified in the information brochure. however, after the cut-off date, approval is granted by the aicte and thereafter, the process is taken up by the state and the intake capacity of the college is increased by 30 more seats. these seats would obviously, not be notified in the information brochure and the candidate who are meritorious and for whom college a; be the college of reference could not get seats or give preference as the seats were limited. none had the proper knowledge about the increase in intake of seats though at a much subsequent stage and may be even after the last date of admission is over either by themselves or under the order of the court even it is put on the internet or given in the newspaper, the candidates of higher rank or meritorious candidates would not be able to avail of that benefit because they have already submitted the testimonial, have paid their fees and the courses have commenced. in that situation, for variety of reasons, they may not be able to take admission in the institution of their higher preference while the candidates of much lower merit will be admitted to that course. besides defeating the merit, it has been commonly noticed that the late admissions made by the colleges directly effect notified candidates who have questioned it more than often as their admission process is not so just, fair and transparent which has given rise to the litigation. it is also a kind of back door entry method. another serious consequence that result from such admissions is shortening of the academic courses in an undesirable manner. it is expected of other candidate selected to a professional course that he or she would complete the course in its entirety and not by missing more than a month or so in joining the said course. this results in lowering the excellence of education as well as harms the academic standard of professional education. admission to professional colleges: [swatanter kumar, c.j., a.p. deshpande & smt. nishita mhatre, jj] technical courses - held, in process of admission to professional colleges relating to technical courses, primarily three institutional bodies are involved. (i) all india technical council for technical education, (ii) state of maharashtra through director of technical education and (iii) university to which such institution is affiliated the role of all these institutions in distinct and different but for a common object. primary of the rule of all india council for technical education (aicte) is now well settled but that certainly does not mean that role of the state government and for that matter the university is without any purpose or of no importance. the council is the authority constituted under the central act with the responsibility of maintaining education standards and judging upon the infra-structure and facilities available for imparting such professional education. its opinion is of utmost importance and shall take precedence over views of the state as well as that of the university. the concerned department of the state and the affiliating university has a role to pay but it is limited in its application. they cannot lay down any guidelines or policies which would be in conflict with the central statute or the students laid down a by the central body. state can frame its policy for admission to such professional courses but such policy again has to be in conformity with the directives issued by the central body. while the state grants its approval and university its affiliation for increased intake of seats or commencement for a new course/college, its directions should not offend and be repugnant to what has been laid down in the condition of approval granted by the central authority or council. what is most important is that all these authorities have to work ad idem as they all have a common object to achieve i.e. of proper imparting of education an ensuring maintenance of proper standards of education, examination and ensuring proper infrastructure for betterment of educational system. only if all these authorities work in a co-ordinated manner and with co-operation they would be able to achieve the very object for which all these entities exist admission to professional courses: [swatanter kumar, c.j.,a.p. deshpande & smt. nishita mhatre, jj] admission schedule - interference by courts held, all the expert bodies viz. aicte as well as directorate of education in consultation with the departments of the state regulating the process of admission and maintenance of standards of education had notified a legal binding document specifying dates and schedule for various matters in relation to admission of students and commencement of courses. there has to be so compelling circumstances and grounds before the court to interfere with the prescribed schedule. it is neither so arbitrary nor so perverse, keeping in view the essential features relating to imparting education to professional courses that it should invite judicial chastisement to the extent of laying down entirely new schedule. merely because there has been some delay on the part of either of these authorities to timely grant of either of these authorities to timely grant or decline approval and permission to commence a course per se would not be sufficient ground for disturbing the notified schedule and timely commencement of courses. - 8. the defendants contested the suit and it was their case that the suit was bad in law, misconceived and no maintainable. the defendants stated that the said martha and elvira did not even send a notice to the defendants nor did they produce the said document through the defendants who laid a claim to the said property and therefore the said martha and elvira are not entitled for any relief against the defendants as well as against the plaintiff. 12. the defendants stated that the plaintiff when he purchased the property was aware of and had taken inspection of all the documents and after being satisfied about the title of the defendants agreed to purchase the said property and that the defendants had sold the same at a lower rate due to the existence of the mundcarial house in the said property and that the plaintiff at that time had told the defendants that she was buying the property leaving the said mundcarial house and due to which the defendants agreed to sell the property at a lower price. the defendants further stated that the plaintiff was not entitled many compensation from the defendants as the plaintiff had enjoyed the property from the time of its purchase in 1991. the defendants denied that the plaintiff was entitled to the said sum of rs. 20. although the plaintiff failed to prove that the said agreement (exh. that apart, the plaintiff had also failed to prove by acceptable evidence that the said martha and elvira or for that matter prior to that their mother had come in possession of the suit property pursuant to the said agreement/ private writing.britto n.a., j.1. the appeal is filed against the judgment/decree dated 12-3-1998 of the learned iind additional civil judge, senior division, margai. the appellants herein were the defendants in s.c, s. no. 21/96. the plaintiff in s.c.s. no. 21/96 is the purchaser and the defendants are the sellers of the southern portion of the property known as 'nelitoleaxeta' admeasuring 2315 sq. m. which was sold to the said defendants by deed dated 16-4-1991 and which deed was preceded by private agreement executed six to seven months before and was followed by deed of rectification dated 24-9-93.2. the case of the plaintiff was that in the said property sold by the defendants there was a house occupied by martha and elvira furtado who had put some illegal structure in the property and as a result of which the plaintiff had filed a suit against them bearing s.c.s. no. 215/91/b and in the said suit the said martha and elvira had filed a written statement on 23-6-93 and had produced a document (exh. p.w. 1/e1) executed by the uncle of defendant no. 1, joaquim francisco roque santana cotta whereby the property in an area of 2675 sq. mtrs. was agreed to be sold by the said joaquim francisco to smt. teresa gomes, the late mother of the said martha and elvira for a consideration of rs. 55,000/-.3. the plaintiff had stated that the said agreement showed that the area agreed to be sold to the said teresa gomes was the southern portion of the property 'nelitoleaxeta' and the northern portion was at that time already sold to some other party (mrs. rosada crasto) and the portion agreed to be sold to smt. teresa gomes was the only portion which had remained to be sold.4. the plaintiff stated that at that time when the property was sold to the plaintiff, the defendants had shown a road in the remaining portion and, as such, the area of the remaining plot sold to the plaintiff was shown as 2315 sq. m. and that the said agreement also showed that the late uncle, the said joaquim francisco even gave possession of the said remaining portion to the said smt. teresa gomes. the plaintiff stated that inspite of the agreement which right to have been noticed by the defendants, he defendants sold the property to the plaintiff for consideration of rs. 2 lakhs and that in the said sale-deed it was mentioned that the defendants would have right to the said property and that it was free from all charges and encumbrances whatsoever and that the defendants had also stated in the sale-deed that they would fully compensate the plaintiff in case the plaintiff was deprived of the possession of the property or any part thereof due to any defect in the title of the defendants.5. the plaintiff stated that in view of the said agreement executed by the said joaquim francisco, the late uncle of the defendants, the possession of the said property was with martha and elvira and the plaintiff was deprived of the possession of the said property and the said martha and elvira did not allow the plaintiff on her attorney to enter the said property.6. the plaintiff therefore prayed for recovery of rs. 2 lakhs being the consideration paid by the plaintiff to the defendants, rs. 12,000/- being the sum spent by the plaintiff on the stamp paper, rs. 5,000/- being the expenses incurred by the plaintiff for completion of the sale-deed and rs. 10,000/- by way of expenses incurred by the plaintiff due to litigation, and in all, the plaintiff claimed rs. 2,27,000/- with interest at the rate of 22% from 16-4-91.7. the plaintiff stated that through her advocate the plaintiff sent a notice on 30-6-95 to the defendants by registered a.d. and demanded the payment of the said amount but the defendants who received the said notice, did no even care to reply to the same. the plaintiff stated that the cause of action for the present suit arose on 20-6-83 when the martha and elvira filed their written statement in the said s.c.s. no. 215/91/b whereby the existence of the said documents came to the knowledge of the plaintiff.8. the defendants contested the suit and it was their case that the suit was bad in law, misconceived and no maintainable.9. the defendants stated that the so-called document/private instrument produced by the said martha and elvira furtado in the said s.c.s. no, 215/ 91 /b was a forged document. the defendants stated that their uncle the said joaquim francisco never signed the same and hence the same was not binding on the defendants. the defendants stated that the said martha and elvira furtado had forged the signature of the uncle joaquim francisco on the said private document and the same was null and void and not binding on the defendant. the defendants stated that no registered deed was executed in respect of the said document nor the said martha did take any steps for further execution of the said document and, as such the said document was bogus and fraudulent. the defendants stated that the said martha and elvira had not produced any receipt of payment of the said sum of rs. 55,000/-.10. the defendants stated that their uncle the said joaquim francisco never agreed to sell to the said martha and elvira the said area of 2675 sq.m. and that the said martha and elvira were trying to grab the said property by fraudulent means. the defendants stated that if at all their said uncle the said joaquim had received the sum of rs. 55,000/- from the said martha and elvira, nothing prevented them from filing a suit to recover the said property from the defendants after the death of the said joaquim francisco. the defendants stated that the said martha and elvira did not even send a notice to the defendants nor did they produce the said document through the defendants who laid a claim to the said property and therefore the said martha and elvira are not entitled for any relief against the defendants as well as against the plaintiff.11. the defendants stated that the said private document produced by the said martha and elvira was a bogus and fraudulent document and not binding on the defendants. the defendants denied that their uncle had given possession of the said remaining portion of the property to the said smt. teresa, the mother of the said martha and elvira.12. the defendants stated that the plaintiff when he purchased the property was aware of and had taken inspection of all the documents and after being satisfied about the title of the defendants agreed to purchase the said property and that the defendants had sold the same at a lower rate due to the existence of the mundcarial house in the said property and that the plaintiff at that time had told the defendants that she was buying the property leaving the said mundcarial house and due to which the defendants agreed to sell the property at a lower price.13. the defendants stated that the plaintiff was not entitled to any compensation as the plaintiff is already in possession and enjoyment of the said property ever since the purchase in the year 1991. the defendants denied that the plaintiff was deprived by the said martha and elvira from entering in the said property. the defendants further stated that the plaintiff was not entitled many compensation from the defendants as the plaintiff had enjoyed the property from the time of its purchase in 1991. the defendants denied that the plaintiff was entitled to the said sum of rs. 2,27,000/- with interest from 16-4-1991.14. in support of his claim, the plaintiff had examined her attorney and one anthony coelho. the defendants examined defendant no. 1 (d.w.) and one marcelino fernandes (d.w. 2). the learned trial court had framed issues an 10-10-97, but at the time of delivering the judgment, proceeded to reframe the said issues as the learned trial judge found that the issues earlier framed by him were not clear. thereafter the learned trial court came to the conclusion that the said document dated 16-4-91 was executed under a mistake though both the parties had been aware about the same and therefore section 20 of the indian contract act became applicable to the suit. at the same time the learned trial court also found that the said sale-deed was executed by the defendants fraudulently when here again it was not the case of the plaintiff that his suit was based on any fraud committed by the defendants.15. at the time of arguments, shri lotlikar, learned senior counsel appearing on behalf of the appellants/ defendants, has submitted that the suit of the plaintiff was filed for recovery of money and some other expenses simpliciter and that the plaintiff has not sought any declaration regarding the said sale-deed dated 16-4-91. shri lotlikar has further submitted that the plaintiff has also not jointed the said sisters namely martha and elvira to the suit. it is the submission of learned senior counsel shri lotlikar that the suit for recovery of consideration simpliciter without relief for cancellation of the sale-deed is not maintainable for the simple reason that by virtue of the sale-deed the plaintiff will continue to be the owner of the property sold and at the same time receive the consideration paid for by him. shri lotlikar has next submitted that the plaintiff has led no evidence regarding the possession of the said martha and elvira and if at all evidence is led by the plaintiff the same pertains to obstruction by the said martha and elvira. shri lotlikar has further submitted that the sale-deed itself mentions that the plaintiff was put in possession of the property sold. shri lotlikar has submitted that the said agreement/private writing (exh. p.w. 1/e-1) was not produced before the trial court and in any event the contents of the same were not proved.16. on the other hand, learned advocate shri rao has submitted that the said sale-deed dated 16-4-91 was executed by mistake and therefore the plaintiff was entitled to rescind the said sale. when asked as to why the plaintiff did not seek a declaration that the sale-deed should be declared null and void learned advocate shri rao has submitted that the said relief could be moulded by this court and granted to the plaintiff. in this context, learned advocate shri rao had also referred to the provision of order 41, rule 42 of the c.p.c. learned advocate shri rao has further submitted that the plaintiff was not given possession of the said property pursuant to the execution of the said sale-deed.17. at the outset, it must be noted that the submissions of learned advocate shri rao appear to be totally misconceived. the plaintiff has used the said so-called agreement(exh. p.w. 1/e-1) as a ruse to get out of the situation she is placed and to recover the consideration paid for sale-deed probably because of interference created by the said martha and elvira with the possession of the plaintiff. the learned trial court has come to the conclusion that the said agreement/private writing dated 2-4-86 (exh. p.w. 1/e24.) 24 deserved to be admitted in evidence and that the same did not become inadmissible in evidence. whatever that means, the fact remains that the original of the said agreement/private writing was not produced before the trial court and what was sought to be produced was a copy which was certified to be a copy by the notary. the defendants had taken the plea that the said agreement was bogus and fraudulent. admittedly, the said agreement was not at all stamped nor signed by the other party namely smt. teresa gomes. as regards the said agreement p.w. 1 had stated that he had received the said certified copy from the said martha and elvira through one of his employees namely ajit kumar. the plaintiff had not examined either the said martha or elvira nor the said ajit in support of the said statement. moreover, the plaintiff had not even got identified whether the signature which was purported to be of the said uncle of the defendants was really that of the said uncle, apart from the fact that the plaintiff had not produced the original of the same. it was the duty of the plaintiff to have summoned the said martha and elvira to produce the said agreement and prove the same as required under law. suffice to observe that the said agreement was not at all proved by the plaintiff inspite of the plea taken by the defendants that it was fraudulent. in my opinion, therefore, the learned trial court was totally wrong in coming to the conclusion that the so-called agreement could be admitted in evidence. at the cost of repetition, it may be observed that the said agreement was not at all proved by the plaintiff. one fails to understand as to how the said martha and elvira could have given a notarised copy of the said agreement to the attorney of the plaintiff and at the same time obstruct the plaintiff in the enjoyment of the property.18. the second aspect which needs consideration is regarding possession. the sale-deed dated 16-4-91 reads thus :'in pursuance of the said agreement and in consideration of the sum of rs. 6,00,000/- (rupees six lakhs only) received by the vendors from the purchaser, receipt whereof the vendors do and each of them both hereby admit and acknowledge and from the same and every part thereof do acquit release and discharge the purchasers forever, the vendors do hereby sell transfer, grant, release, convey and assure unto the purchasers all the said property named 'caranguinim pequeno alias volxi' (three quarter parts) situated in the village of aquem, presently within the jurisdiction of village panchayat of aquem baixo, admeasuring 20,000 square metres, more particularly described in the schedule appended hereunder, together with all rights, title claim, use, benefit interest and demand whatsoever of them the vendors into and out of the said property so that the purchasers may hereafter have and hold the said property unto themselves absolutely and forever together with all action, domain, appurtenances and here determents whatsoever.'19. the said clause of the deed gives a clear impression that by the execution of the sale-deed the defendants conveyed possession of the said property to the plaintiff. that apart it was not a case of the plaintiff in the plaint that along with the sale-deed the plaintiff has not received the possession of the property. if that was the case the plaintiffs remedy might have been to recover possession of the property. all that the plaintiff stated in the plaint was that the plaintiff was deprived possession of the property by the said martha and elvira. it follows that after the plaintiff got possession of the property through the said sale-deed the plaintiff has been deprived of the said possession by the said martha and elvira and if that is so the plaintiff ought to have taken action according to law against the said martha and elvira. again it must be stated the d.w. 1 mario pereira has categorically stated that possession of the suit property was given on the day the sale-deed was executed by the plaintiff and that the plaintiff (p.w. 1) had brought to his notice that he was dispossessed. the said statements of d.w. 1 have remained uncontroverted and falsify the claim now made by the plaintiff that the plaintiff was not given possession of the suit property at the time of execution of the sale-deed.20. although the plaintiff failed to prove that the said agreement (exh. p.w. 1/e-1) was executed by the uncle of the defendants, even in case there was such an agreement, it was only a promise made to sell and such a promise could not have created, in favour of the defendants, any interest in the property. that apart, the plaintiff had also failed to prove by acceptable evidence that the said martha and elvira or for that matter prior to that their mother had come in possession of the suit property pursuant to the said agreement/ private writing. at the cost of repetition it may be stated that the plaintiff is seeking to recover the consideration paid by her possibly because of the interference of the said martha and elvira in the enjoyment of the property purchased by the plaintiff. as the old adage goes, one cannot have the cake and eat it too. the plaintiff cannot have title to the property and at the same time recover the money paid by her as consideration for the said sale-deed. shri lotlikar, the learned senior counsel is right when he submits that the plaintiff could not have filed a suit for recovery of consideration paid without seeking cancellation of the sale-deed. granting of reliefs not prayed for is one thing and moulding of reliefs is quite another. reliefs not sought cannot always be granted on the principle that reliefs can be moulded. the plaintiff came before the court with a definite case and it was for the plaintiff to prove the same. as stated before, the said agreement/private writing which appears to be of dubious character, has been made as ruse by the plaintiff to get back the money paid by her because of interference of the said mundkars in the enjoyment of the property purchased by the plaintiff.21, in view of the above, the appeal is bound to succeed and the judgment and decreed of the trial court deserve to be set aside. consequently the suit of the plaintiff shall stand dismissed with costs throughout.